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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 664 OF 2018
THE STATE
V
NICKSON PALAM
Waigani: Ganaii, AJ.
2021: 27th, 30th August, 01st, 03rd, 08th September
CRIMINAL LAW – Trial – Verdict - Sexual Penetration of a Child - Section 229A (1) CCA - Abduction of Girls under 16 years – Section 351 (1) CCA –Inconsistent Statements - Credibility of witnesses – Common sense and logic - Demeanour of witnesses – Observance of rule in Browne v Dunn
Cases Cited:
Papua New Guinea Cases
State v Angosiwen (No. 1) [2004] PNGLR 1
State v Baisand Fimberi (2003) PGNC 95 N2416
Regina v Barie [1955] PGSC 11
State v Cosmos Kutau Kitawal (No 1) (2002) N2245
State v Gari Bonu Garitau & Rossana Bonu [1996] PNGLR 48
State v Kago [2018] PGNC 281; N7400
State v Nand [2014] PGNC 60; N5591
State-v-Patrick (2004) PGNC 147; N2611
Paul Pawa v the State [1981] PNGLR 489
State v Peter Malihombie [2003] PGNC 124; N236
State v So'on Taroh (2004) N2675
State v Tom Morris [1981] P.N.G.L.R 493
Overseas Cases
Browne v Dunn (1893) 6 R. 67 (HL)
Law Cited
Criminal Code Act, Chapter No 262 of 1974
Counsel
Mr Andrew Kaipu, for the State
Mr Boski Koke, for the Accused
DECISION ON VERDICT
08th September, 20121
1. GANAII, AJ: The accused Nickson Palam stands charged on two counts on an indictment dated 27th of August 2021. The counts are:
Count 1
that he on the 01st day of January 2018, at ATS, National Capital District in PNG, sexually penetrated a child under the age of 16 years, namely C.I. by inserting his penis into her vagina,
thereby contravening Section 229A (1) of the CCA
Count 2
that he on the 01st day of January 2018, at ATS, National Capital District in PNG, unlawfully took away C.I. an unmarried girl under the age of sixteen years (16) years, then aged 13 years old, from the protection of Ai Kom, the person who had lawful charge of her,
thereby contravening section 351 (1) of the CCA.
Statement of Facts
2. State alleges that both the child complainant and the accused live within walking distance to each other at ATS, NCD and are known to each other. They both come from Mul Baiyer in WHP. At the time of the alleged offence the child complainant was 13 years old and the accused was 24 years old.
3. Around 1:00 am, after New Year’s celebrations, 2018, the child complainant’s aunt Ai Kom sent her to buy cigarettes from a nearby tuckerbox. As she approached the tuckerbox the accused Nickson Palam came from behind and held her by the shoulders and forced her to go with him. When she refused he threatened her.
4. The state further alleges that the accused forcefully took the 13-year-old child complainant to his premisses and sexually penetrated her through the vagina with his penis.
5. State says the actions of the accused contravened sections 229A (1) and 351 (1) of the CCA, offences of Sexual Penetration of a child under the age of 16 and Unlawful Taking away of Unmarried Girl under the age of 16 years.
Plea
6. The accused pleaded not guilty to the charges and a trial was conducted. After the court refused a no case to answer submission, the defence called evidence. This is a ruling on verdict.
Issue
7. The issues are whether the accused committed the acts of sexual penetration of a child under the age of 16 years and whether the accused took away an unmarried girl under the age of 16 years from the care and custody of her parents or guardians.
Law
8. The offence provisions and case law on the elements for the offences of which the accused is charged with are stated below:
229A. SEXUAL PENETRATION OF A CHILD.
(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.
Penalty: Subject to Subsection (2) and (3), imprisonment for a term not exceeding 25 years.
(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.
(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.
Elements of the offence of Sexual Penetration of a Child
9. In the State v Nand [2014] PGNC 60; N5591 (15 April 2014), the court stated the elements of the offence of Sexual Penetration of a Child under the age of 16 to be:
1. the accused engaged in an act of sexual penetration with the complainant; and
2. the complainant was a child under the age of 16 years.
351. ABDUCTION OF GIRLS UNDER 16.
(1) A person who unlawfully takes an unmarried girl under the age of 16 years out of the custody or protection of her father or mother, or other person having the lawful care or charge of her, and against the will of the father, mother or other person, is guilty of a misdemeanour.
Penalty: Imprisonment for a term not exceeding two years.
(2) It is immaterial in the case of a charge of an offence against Subsection (1) that–
(a) the offender believed the girl to be of or above the age of 16 years; or
(b) the girl was taken with her own consent or at her own suggestion.
Elements of offence of Abduction of Girls under the age of 16 years
10. In the case of State v Kago [2018] PGNC 281; N7400 (22 June 2018), the court held the following to be the elements of the offence:
11. In order to satisfy the elements of the offences, the State is required to produce evidence to prove the elements of the offences beyond reasonable doubt. In Regina v Barie [1955] PGSC 11 (8 December 1955), the court stated:
“On such charge onus [is] always on Crown to prove guilt beyond all reasonable doubt – no onus on accused to prove innocence. Such proof requires proof to that degree of all elements constituting alleged offence...”
The Evidence
Prosecution Evidence
12. The State tendered the following:
(1) Record of Interview both English and Versions, dated 5th January 2018, marked as State Exhibits “A1” and “A2”.
(2) Affidavit of Olivia Sharon dated 5th January 2018 and attached to it a Medical Report dated 2nd January 2018, marked as State Exhibits “B1 and B2” and
(3) Birth Certificate of child complainant marked as State Exhibit “C”
13. State called witnesses who gave sworn oral testimony. The witnesses are the child complainant; her mother Shelly Isaac; Rodney Pet and the Police photographer Senior Constable (S/C) Samuel Koy. A summary of the prosecutions oral evidence is stated below:
Examination in chief of child complainant
14. Witness stated that she is 16 years old and is not going to school. Her mother is Shelly and father is Isaac. She is aware that she is in court today for her case.
15. At the relevant time in the new year of 2018, she was at the house. Her mother and other family members were also there at the house. In the afternoon of New Year’s Eve, the family was preparing for the new year celebrations and were having alcohol. She recalled those persons who were there. There were three women but she didn’t know their names. There were two other persons she knew and they were Ai Kom who is her aunt and Ai Kom’s husband Charlie.
16. That afternoon, people started drinking. Her mother had gone to sleep around 12 (mid-night). The child complainant was awake. She couldn’t sleep because of the noise from the women drinking, playing music and dancing. Apart from the three women and her aunt she did not see anyone else making noise in the yard. The child complainant woke up and came out around 12 mid night and sat with her aunt and uncle on the form.
17. The child complainant stated that she knew Mr Nickson Palam as they live together in the same area, at Hagen kona. She knew him for one year since she came down from Mt. Hagen. After 12mid night, she did not know where Nickson Palam was. She did not see him that night.
18. Whilst sitting with her aunt and uncle, they were drinking beer and she was just sitting there, telling stories with them. Her mother was already asleep.
19. She stated that she has brothers and sisters and their names are Cedrick and Carolyn. Cedrick was also getting ready to celebrate the new year and was drinking and moving around. She didn’t see him that night.
20. The child complainant was sitting with her aunt Ai and uncle Charlie for about an hour when they told her to go and buy some cigarettes. It was her aunt Ai who sent her. She was going to buy cigarettes at their store. The store was located at the front of the road. From her house to the store the distance is a bit far. The complainant estimated the distance to be from the court room to the security check point, estimated and agreed by counsels to be about 60-100 metres away.
21. As she was walking to the store, she stated that “that man came and grabbed her and covered her mouth”. She said she didn’t know the man then and asked him why he was covering her mouth. She said the man said he was going to kill her and she should not say a word. She said she knows the person who threatened her she said his name was Nickson.
22. After threatening her, he grabbed her, took her away and said if she said a word, he would kill her. He pulled her to his brother’s gate and he raped her. He raped her there at that place he took her to. She stated that she walked and he pulled her in, he pulled her to the brother’s gate and next to a patapata or form made for sitting, that was where he raped her there.
23. The house of the accused’s brother was close by but she couldn’t scream because he threatened to kill her if she screams. The distance of the house to where she was raped is described by the complainant to be from the bench to the outside foyer estimated and agreed by counsels to be 10-15 metres away.
24. The child complainant described how the accused raped her. She said he did so by pulling her, telling her not to talk, covered her mouth and raping her. She wore clothes and the accused removed her clothes and tore her shirt. She said he raped her for a short time. After raping her, he told her not to tell anyone or if he meets her anywhere, he will put a knife on her. After raping her and threatening her, she cried and ran out.
25. She ran out and further up a bit she met her uncle Rodney who lives with them. She cried to Rodney and told Rodney that this guy pulled her and raped her. Rodney told her to go and see that man. They went and Rodney called out to him and hit the gate but he ran away and no one came out. They then went home and woke up the child complainant’s mother. The mother didn’t do anything then. They then went to sleep.
26. In the morning they went to talk to the accused. The accused was drunk and swore at the complainant’s mother saying, “what kind of a daughter is your child that I will have sex with her”. He then used obscenities like ‘kaikai kan’. After that, it was morning time, so the complainant’s mother and the complainant went to put a report at the Boroko Police station and went for a medical check.
27. When she was raped, the child complainant said she felt pain in her vagina.
Cross-examination of the child complainant
28. At the time of the incident, the child complainant was in school doing Grade Four. She lived with her parents at Hagen kona. She didn’t stay with her parents in the same house but she stayed with her aunt Ai in another house. The place is a settlement and there were a lot of houses and people who resided there. From her house to Nickson’s house, there is only one store. Her house is located along the main road. The store was in front of the house.
29. When asked by defence counsel, if she will agree that the distance between her house to that of Nickson’s brother’s house was about 500 – 600 meters, she said no, it was shorter. She described the distance as similar to her first description.
30. The witness was reminded by counsel that the first distance she marked out was between the store and her house and not her house and Nickson’s house. She stated that the distance between her house to Nickson’s house is the same distance as the first distance she gave. She agreed with defence counsel that it is about 50 – 60 meters apart.
31. The complainant agreed that at that time she was sitting with her aunt Ai and Uncle Charlie at the place where they were drinking, there were few people in their premisses, and just three women but she didn’t know their names. She also agreed that that her parents traded betel nut and paid the three women to sell the betelnut. She again said she knew the women but did not know their names.
32. When asked about Rodney, she agreed that he was drinking beer at the place where people usually sell beer which was further up. She repeated that the place was further up. The distance from her house to that place where they sell beer was estimated to be from here to the main gate she describes as the spot where ‘the man gets down names’, i.e., referring to or indicating the entry record book desk and not the main gate, which is the place past the main gate and further up. Counsels estimated and agreed that the distance was 100 metres. She said it was not the same store that she was sent to, to buy cigarette.
33. When put to her that at the time there were lots of people drinking alcohol because of the new year, she stated that there were crowds of people around but they were not at her residence. They were at the place where they sell alcohol. She disagreed with defence counsel that there were people drinking outside their premisses.
34. When asked that in order to get to or reach Nickson’s brother’s house, one will have to go pass the store where they usually sell beer, she said no, it was in front of their house. When asked again that before getting to Nickson’s brother’s house one will have to pass the store where they sell beer she said no, they don’t sell beer there. First, they did, but at that time no.
35. When asked if Rodney drank beer at that beer shop, on the broadside, she said it was further up. She disagreed when it was put to her in cross examination that it was close to Nickson’s brother’s house and said it was a bit far. When asked to agree that before reaching Nickson’s brother’s house, one will have to go pass the store where they sell beer and where Rodney was drinking and she said they drank further up, but the house of his (Nickson’s) brother is down below. She agreed that Rodney did not drink at her parent’s house. She said he drank up there but he would come and go to check or spy on them.
36. The witness explained that the accused approached her before she had reached the shop and whilst she was still walking on the road to go and buy the cigarettes. It was in the middle of the road and she was almost reaching the store. She went closer and saw that the shop was not open. She agreed with the defence counsel that her story is that before she reached the store Nickson approached her and covered her mouth with his hands. She didn’t arrive at the shop. She was almost there and he came and covered her mouth and because of that she could not have known whether the shop was open or closed.
37. She agreed that after the incident, a day later, she went to the hospital and gave her story to the Health Extension Officer (HEO). Her mother took her to the hospital. She agreed that when she met the HEO and before the medical examination, the complainant told her story to the HEO on how the incident happened to her.
38. When it was put to her if she recalled telling the HEO that the accused Nickson Palam took her into a small bush along the main road and sexually penetrated her there, she said no, that was not what she said. She stated that she was with her mother and they did not tell the HEO that the accused took her to the small bush off the road and sexually penetrated her there but rather that the accused took her into his premises and sexually penetrated her there.
39. The witness was referred to the medical report prepared by the HEO and tendered into court as evidence, marked as State Exhibit ‘B2’. At paragraph three (3) of the Medical Report, the HEO stated that during consultation the child complainant told her the following:
“Em long Niu Yia taim....Mi wokabaut go lo rot na man ya em pulim mi go insait liklik long grass na em mekim pasin nogud lo mi ...”
Translated to mean:” It was during the new year...I walked on the road and this man pulled me into the small bushes and raped me...”
40. When put to her that this was exactly what she told the HEO she said, “I don’t know’.
41. Defence put to her to agree that it was not possible for the accused to use his hands to close her eyes and cover her mouth and take her along that distance, she said he covered her mouth and threatened her not to scream or talk and pushed her along. He pulled her and he also pushed her. He was pulling her and did not carry her. At the house, she was still walking.
42. When asked if she recalled giving a statement to the police, she said it was three (3) years ago and she could not recall. She recalled and agreed that she spoke to the Policewomen (PW) Martha Maraga who took her statement down. They had a discussion. She told her story and the PW wrote it down in a statement and she signed. She was shown her statement. Witness confirmed her signature on the pages. When shown, she agreed that it was her statement to the Police. She was referred to paragraph 5 and counsel read the statement in pidgin as follows.
“.......... Nickson passim .... apim wansait leg, apim mi go antap, pasin ..........mi struggle na em strong na karim mi go”
43. When asked if she recalled that at paragraph 5, she said the accused carried her, she said it was three years ago and she was not sure.
44. When asked that she told the police that he ‘carried’ her to his brother’s house she said yes. When asked that she just told the court now that he did not carry her but just pushed her, she said in pidgin “em pulim mi na karim mi go” translated to mean: “he pulled me and took me away”
45. The defence tendered the child witness’s statement as a prior inconsistent statement. The State prosecutor submitted that it was not a substantive inconsistency. The court received the child witness’s statement as a prior inconsistent statement and marked it as Defence Exhibit “E”.
46. In further cross examination, the child complainant’s memory was taken back to her story about entering Nickson’s premisses. She said he raped her and the gate was not locked. She explained that the gate was open and he took her in.
47. When it was put to her that the accused did not hold her, she said that was a lie.
48. When it was put to her that the accused did not abduct her and take her to the house, she denied it and said he lied.
49. When it was put to her that the accused did not sexually penetrate her, she said that those were all lies.
50. When it was put to her that the gate was locked because it was New Year and there were a lot of drunks, she said the gate was not locked and he lied.
51. When it was put to her that Nickson Palam did not drag or take her all the way to his brother’s house, she said the accused lied.
52. On the motive of land, she was asked if she recalled that the land Nickson Palam has built his house on was the same land that her father had said it was his land, she disagreed that there was such a land issue between her father and Nickson’s brother and family.
53. She also denied knowing anything about any ongoing conflict regarding any land where National Airports Corporation had told her father to vacate. She raised her voice and strongly denied any ongoing conflict between her family and Nickson Palam’s family. She denied telling lies and making up these allegations against Nickson Palam because of the ongoing land conflict as there was no such issues.
54. She agreed that she has an elder brother called Cedrick. She agreed that at the time of New Year’s Eve, he was drunk. She said he was drinking but he was not drinking at their home and was drinking out somewhere else. When asked if she knew that her own brother Cedrick was drinking beer with Nickson Palam, all throughout the night till morning she stated that she didn’t know.
55. When it was put to her, she agreed that when her mother approached Nickson Palam in the morning, he was still drinking. When it was put to her that her brother Cedrick was with Nickson when she and her mother went to see Nickson she said no. When it was put to her that she did not go with her mother to see Nickson in the morning, she said, Nickson went to their house and they argued.
56. When it was put to her that Nickson went to their house, she said he went to the front of their shop. When she was asked if she and her mother went to Nickson’s house in the night after the incident she said no. She agreed that after the incident she and her mother didn’t go together to Nickson Palam’s house. She herself didn’t go there. She said her mother may have gone there.
57. She agreed that when she came out of Nickson Palam’s brother’s gate she met her uncle Rodney. When it was asked if they both went to Nickson’s Palam’s brother’s house to see him and that the gate was locked, she said they went and the gate was not locked.
Re-examination of the child complainant
58. In re -examination, witness confirmed that at the time of the incident she was in Grade Four and was 13 years old.
59. She recalls saying that her uncle Rodney was drinking beer at the place where they sell alcohol. She recalled telling the court that he drank there and would come to spy or check on them.
60. When asked about what she said in the Medical Report she stated that she was taken into an area with “(liklik) small grass and bush and raped”, she said it’s been three years since and she cannot really recall.
61. When asked what was on the side of the patapata she stated that there were bushes around the patapata.
62. When asked if she recalled the defence lawyer referring to land issues between her father and Nickson’s brother, she said yes, she recalled. When asked if her father talked to her about any land issues, she said no.
Examination in chief of Shelly Isaac
63. Witness is the child complainant’s mother. She has four children and the child complainant is the second born child. She stated that she gave birth to the child complainant at home in Mul Baiyer. She stated that she cannot recall the date she gave birth to her.
64. At New Year’s Eve in 2018, she had gone to sleep. She went to sleep after seeing the new year. Before going to sleep, people were celebrating the New Year. These people were those persons or relatives who lived with them and celebrated the new year. They were Roslyn, Julie and Sotarine. Of these, some women were her in-laws and one was her husband’s mother. Her in-law was Julie and her mother in-law was Rosa. Ai was also there drinking. Ai is married to Charlie and he was not drinking.
65. She went to sleep just after New Year’s Eve and was woken up at 2:00 am by Rodney who told her that Nickson Palam had raped her daughter. Besides Rodney waking her up, mother Rose also woke her up. At that time, her daughter, the child complainant resided with Ai Kom and Charlie in her house and eats and sleeps there. At that time, she was with them. When she woke up, she did speak to her daughter who told her that after Nickson raped her, Rodney met her and she came and woke the witness up. The story of Rodney meeting the child complainant was told to the witness by her daughter the child complainant. She can recall what was told to her.
66. The witness stated that her daughter, the child complainant told her that people were drinking beer. Ai too was there and they were together. Ai sent her to buy cigarettes. She went out and on her way to the store, Nickson Palam went and covered her mouth and told her not to say anything or he will kill her.
67. The witness said the child complainant told her that Nickson took her to his gate, went into his house, inside the premisses, there is a patapata, a new block, on either side there is grass growing. She said it was a new block and they all got new blocks but didn’t do any gardening yet so there were bushes growing. On the side was a patapata, that was where the accused raped her daughter. The witness said this was what the child complainant said to her.
68. Witness said after she was told the story by her daughter, she and her brothers started to look for Nickson Palam but he wasn’t there. The next morning at about 6:00 am, he came to the store in front of their house. The witness approached him and asked him about what he did to her daughter and he denied the allegations, argued with her and swore at her. Witness then took the child complainant to the hospital.
69. Witness could not recall the exact swear words the accused used on her. She said he held onto a beer bottle and tried to hit her with it. The witness told the accused that the child complainant was her daughter and she asked him why he did this to her. She then took the complainant to the Police Station. She confirmed that she had three other children.
Cross-examination of Shelly Isaac
70. In cross-examination the witness said she lived at Hagen Kona, ATS for 10 years. She knows a person called James Kay who lives in the area and owns a trade store. She and her husband also own a trade store.
71. She could not recall the time when the police officer went to their residence to take photos with the arresting officer. She said she only recalled Martha Maraga of CID getting the photos. She was not sure if Martha Maraga was accompanied by another police officer. All she knew is Martha Maraga took the photos.
72. On the 08th of January 2018, she said it was Martha who went and took the photo. She stated that it was the girl who gave her story to the police. She agreed that she took her daughter to the Police and supported her daughter by giving her story to the Police.
73. When it was put to the witness that at the time, she and the victim gave their stories to the Police they told the Police that Nickson Palam took the victim to his brother’s house and the gate was locked. The witness said the gate was open and he took her in.
74. When it was further put to the witness that she told the Police that the accused and the complainant went through the small opening in the gate when the gate was locked, the witness said they both went in and he raped her inside.
75. When it was also put to her to agree that the act of sexual intercourse as she and child complainant told the police occurred in the residence of James Kay, and not in house of Nickson Palam, she said the accused raped the child complainant inside Steven Palam’s residence. She agreed that it was not at James Kay’s residence.
76. On New Year’s Eve, she denied drinking during the celebrations. When put to her that when Rodney came to report to her, she was also drinking in the premisses, she said she does not drink and she slept early at 12 mid night. She said no she did not drink. When it was put to her that at the time, she was not asleep but was drinking, she said she doesn’t drink and slept early.
77. When asked if Rodney and Nickson were in the premisses before she slept and at time people were drinking and celebrating, she said she didn’t see them. When it was put to her that she offered a beer bottle to Nickson Palam, she said No. When it was put to her that Nickson was with Ai Kom and Charlie in her premisses she said no.
78. When she heard about the incident from Rodney, she agreed that she took the child complainant to the police station first on the 01st of January and later to the hospital on 02nd January.
79. At the hospital the witness told the story to the HEO that her child had been raped by this man and she said whether it’s true or not the law and Police told them to get a medical report. She said she was there with the child complainant to see the HEO.
80. It was put to the witness that when the child complainant told her story to the HEO, she told the HEO that she was sexually penetrated at the side of the road, in the tall grasses and not at Nickson Palam’s residence. The witness said the complainant said she was taken into the premisses, to where the patapata was, and since the block is new, there was bush growing and that’s where he raped her.
81. When it was put to her, that was not what she and her chid told the HEO, she said these were the same story told to the HEO. When it was put to the witness that what she told the HEO is different to what she told the court, she stated that it was the same story and the story is that that he took her into his brother’s residence and raped her there.
82. When it was put to the witness that the police photographer who took the photos of the crime scene, said in his statement that Nickson Palam’s residence gate was chained locked that time and her daughter and Nickson Palam slipped through the opening in the gate, the witness said Nickson Palam resides in that premisses, the gate was open and he took her there and raped her.
83. When it was put to her that what she told the police photographer was not the same story that she told the court now, she said she gave the same story already and now she is giving that same story again.
84. She said she is neighbours to James Kay. His residence is at the back and it does not have a patapata where people go and sit.
85. When it was put to her that when she first gave the story to the Police, the story was that Nickson Palam sexually penetrated the child complainant at the residence of James Kay, she said no. When put to her that she is now changing her story by saying that Nickson Palam sexually penetrated her daughter at his brother’s premisses, she said yes.
86. When it was put to her that she told 3 different stories to the Police, Medical Officer, and to court she maintained that her story is the same throughout.
87. When put to her that what she told court is not true, she said what she is telling the court is true as told to her by her child.
88. When asked about her husband’s previous ownership to the land where Steven Palam built his house, she said it’s a new block, they got theirs and Steven Palam also got his on the other side. When it was put to her that the land that Steven Palam put his house on was previously taken by her husband, she said no. When it was put to her that there was a dispute between her family and Steven Palam’s family she said no. When it was put to her that it was because of that disharmony and disagreement she had made up this story to the police, witness said there was no conflict over land. The witness disagreed that there was any dispute between her husband and accused’ family to the land that Stephen Palam’s premises is now on.
Examination in chief of Rodney Pet
89. Witness is from Mul Baiyer District, WHP, witness is 21 years old and single. He resides at ATS. On New Year’s Eve 2017, he was at ATS celebrating the new year and drinking. He was with some mothers namely Maria, Rose and Ai. He knows Shelly Isaac who was in the house at the time and wasn’t doing anything. Shelly Isaac does not drink alcohol.
90. Apart from Maria, Rose and Ai, there were other male persons namely Joshua from Dei council tribe. Ai is married to Charlie. Charlie was not with them. It was around 12 midnight. As they were drinking the witness said he left those ladies and went to the store further up to look for beer. He went up, and when he was coming down at Nickson’s gate he saw the child complainant crying. He asked why she was crying, and she said Nickson covered her mouth and raped her and she came. He took her to her mother, and he told the mother. They went to look for Nickson, but he wasn't there.
91. When the witness was asked where the child complainant was, when he was still with Rose, Ai and the others and before he left for the store to buy beer, he said they were all together. When he was asked if the accused was there, he said no.
92. When the witness was asked how long he had gone to look for beer after 12 mid night, he said there were plenty people, place was crowded and he was telling stories with them and so he stayed away for about one and a half to two hours before coming back down.
93. He said when he came down, he met the child complainant outside the gate of the accused’ residence. He said she met him and straightway she cried and told him that Nickson covered her mouth when she was going to get smoke and took her away and raped her. When asked where exactly she said he raped her and the witness said the child complainant told him that the accused took her into a premises, it's a new block and next to the long bushes he had raped her there. The witness was angry about what the child complainant had told him. He wanted to go and hit the accused, but she told him that the accused escaped so he took the child complainant to her mother, and he went away.
Cross-examination of Rodney Pet
94. On the 31st of December 2017, the witness said in cross examination that he was about 21 years old and now he is 24 years old.
95. The witness said he is related to the child complainant. The child complainant is his elder sister’s child. He is her uncle. He first came to Port Moresby in 2012 and that is nine years now, residing with the child complainant’s family. He lives in the same premises where the child complainant’s parents live.
96. On the 31st of December 2017, in his evidence, he said during the new year celebrations, he was drinking. He agreed that his sister Shelly Isaac doesn't drink beer. On that night, he agreed with defence counsel and according to witness evidence that she wasn’t drinking beer. He said she wasn't drinking beer, but the other ladies were drinking. It was New Year, so they celebrated and Shelly was just sitting with them.
97. Defence was granted leave to show witness his statement dated 11th January 2018. Witness was shown his statement. He recalled the statement he gave to the police on the 11th of January 2018. He told the Police his story on what happened on the night of 31st of December 2017. The witness confirmed that the signature on that statement is his signature. He agreed that that was his story to the Police.
98. He was referred to paragraph 2 of his statement and he read his statement in pidgin... it said: (translated by the court):
“I can recall new year 2018 my family and I made some promise to stop eating certain food that we used to eat (was bad for our health etc.) so on that night we bought some beer and celebrated as a family with family members, many were mothers even Complainant’s mother named Shelly, Ai, Koki, Robert and others we resided together at the same place. ‘
99. When asked that when the witness gave his story to the Police he told the Police that the Complainant’s mother was also in the group that was drinking. The witness said, those of us who resided in the premises were all together, Shelly was with them in the group but she was not drinking.
100.The witness was referred to the second last paragraph which states: in pidgin, translated by the court:
“... when I heard I was angry and I wanted to go and search for Nickson and hit him, I asked the child complainant where the accused went and she said he went that way to another store. I got the child complainant and walked back to the house and we met Koki on the way and the three of us went and told complainant’s mother who was drinking beer and singing”
101. When it was put to the witness that the child’s complainant’s mother was drinking beer, singing and dancing with the others, the witness stated that Shelly was not drinking but she was just singing with them.
102. When the defense counsel put to the witness that as per his statement the child’s mother was drinking beer and was singing with the others he said no. He agreed that his statement to Police was wrong and he said she didn’t drink beer but was just sitting and singing with them.
103. Defence tendered the witness statement of Rodney Pet dated 11 January 2018 as a prior inconsistent statement and marked as Defense Exhibit “B”. When it was put to him that he lied to court because of his statement to the police he said he told the truth. When it was put to him that what he told the story in examination in chief is not true he said it’s true.
104. When it was said that he said a number of people were drinking in the child complainant’s parent’s premises, and when asked if Nickson Palam the accused was one of those in the group, he said no.
105. When it was put to him that he told the police that Nickson was in the same group, he said it was three years ago and he came to court just to confirm so his statement is there and its three years ago.
106. For those three years, defence asked that if he can recall all the others, how is it that he cannot recall seeing Nickson there, he said it was New Year, many people were drinking there, and he didn’t see him sitting there.
107. Witness Rodney Pet was shown his statement again. At paragraph 3 of the witness statement, defence referred him to his statement which says in pidgin:
“Mipla drink bia stap na wanpla save pes man Nickson spak lo sampla hap kam na em joinim mipla. Dring stap, namel lo mipla Carol sindaun stap, taim em 2 am, long morning, mipla olgeda dring spak na name blo em Ai salim carol lo kisim smuk blo em”.
108. Defence put to him that at around 2:00 am, he was still at the premises, he said he was not in premises and that he was out. When put to him that in his statement he said at 2am he was there, and so his story to court now is not consistent, he said he was there outside at the store where there were lots of people. When asked that he said Nickson was there with them around 2am, he said no. When asked which story he will be relying on to Police or to court, he said he went with him.
109. Defence relied on his prior inconsistent statement that was already tendered and put to the witness that all the evidence to the police is not true, he said no. When put to him that he lied to court he said no.
110. When asked if he recall telling court that Charlie, Ai’s husband was not part of the group he said yes. When put to him he was never there at time of the New Year celebrations, he said he was there but must have gone to sleep or he didn’t know. When asked if he agreed that he told court that Charlie was not there, he paused for a long while and then said yes. When put to him that he also lied that Shelly wasn’t drinking beer, witness said no she didn’t drink. Witness agreed that he said he left the residence to look for beer. He agreed that he was not searching for the child complainant.
111. When asked which store he went to and distance from the child complainant parent’s residence, he said he went to the other boy Nixon’s store and then he came back down. And before going to Nixon’s store, where he intended to buy beer, on the way there, defence counsel asked where exactly Steven’s residence was located, whether it was before or after reaching the store, the witness said: “Mi abrusim store blo Nixon west Irian na go baim beer” translated to mean: “I had left the West Irian Nixon’s store and went to buy beer”. When asked if he bypassed Nickson Palam before reaching the store he said Yes.
112. When asked what he would say that there is evidence to say that he was elsewhere and not at Nixon’s store to buy beer, he said “No mi go kisim bia” translated to mean: “No, I went there to get beer”.
113. When asked that he was not drinking at another location but only at the residence of the child complainant’s parents, he said yes, he was at their residence and then he went out. When asked if he was at premises all time till 2 am, he said no, at about 12 mid night he had gone out to look for beer.
114. Where asked that from where witness (Rodney) resides to where Steven Palam’s residence is, it is about three blocks away, he said from Isaac Kuli’s residence where he resides to Steven Palam’s residence, that is another new block and currently people live there. He said he knows James Kay who is a next neighbor and they share the same fence.
115. Witness agreed that along the road they share the fence and the border separates his home from James Kay’s home. He said there is kapa fencing or corrugated fencing. His agreed that Jame’s Kay’s house is adjacent to his place and the fencing separates them, and they are neighbors. Along the road leading to Nickson Palam’s house there are other trade stores, 3 other trade stores.
116. When asked if there is one trade store to the right and on the left is James Kay’s residence, and trade store, he said yes. When asked if on the left side, where James Kay and the child complainant’s parents reside, are two trade stores on side of road, he said yes.
117. Witness did not agree that there were many people drinking beer where the trade store is. He said it was getting into late hours many people have gone home by them and there were not too many people. When put to him, he said he was not sure if there were a lot of drunken taxi drivers around.
Re- Examination of Rodney Pet
118. In re-examination, witness Rodney Pet said Nickson Palam left at about 9:00 -10:00 pm. After that time the witness did not see Nickson. He said he (witness) went out to look for beer and it was about 12 mid night, the fireworks display had happened already, and some time had passed by. Witness agreed that he went to buy beer.
119. In clarifying where Nickson Palam and James Kay’s houses were, witness said they James Kay was his next neighbour and Nickson Palam’s house was three blocks away. He said Steven Palam owned a new block at the back where the Simbus live.
Examination in chief of S/C Samuel Koy
120. Witness is a police officer attached to the Forensic Science Centre. He holds the rank of Senior Constable (S/C). He recalls being involved in the investigations in the case against the accused Nickson Palam. He recalled taking photos at ATS, Hagen kona.
121. Witness was shown a sketch map tendered into evidence by consent marked as State Exhibit “D”. He described the contents of the sketch map in this way: The child complainant’s route starts at Isaac Kuli’s residence where she is sitting on a platform; then she is assigned to the trade-store, the trade-store is shown “T” 50 metres to the North, and “A” is the scene of abduction where the accused took the child complainant. Witness said according to the diagram, the child complainant was confronted at the back of the trade store, shown in photographs 4, 5.
122. The same scene is shown in photograph 6, taken towards Mr Isaac’s residence.
123. The child complainant was confronted by the suspect and taken away approximately 100 metres towards the west along the road towards the residence of one Steven Palam, a confined area as shown in photographs 7 and 8.
124. The main gate to the yard is at the north corner of the yard.
125. When asked if the sketch map is done with those descriptions the witness said yes.
126. Witness agreed that James Kay’s residence was not indicated on the sketch map, and when asked to locate it, he said James Kay’s residence is in front of Steven Palam’s residence within the same block.
127. Distance from behind the trade store to the entrance of Steven Palam’s block is estimated to be approximately 100 metres.
128. He agreed that there are only two tucker boxes in the area according to the drawing in the sketch map.
Cross-examination of S/C Samuel Koy
129. In cross- examination, the witness agreed that the arresting office Maraga had given him a brief of the case. When witness went to the crime scene he met up with the child complainant.
130. Witness was referred to his statement, at paragraphs 11, 12, 13, and when it was put to him that the child complainant said the chain to the gate was locked, and now she said it is not, the witness said she may have been traumatised
131. Witness S/C Koy agreed with counsel that the child complainant told him that she and the accused slipped through the gate opening about 20cm wide. Witness referred to photographs 11, 12, 13 and paragraph 11 of his statement to show the opening in the gate.
132. At paragraph 13 of the witness’s statement, when put to him that the act of sexual penetration was within the premisses of James Kay he said no, it was inside Steven Palam’s residence. He explained that the crime scene was in front of James Kay’s house but within Steven Palam residence. The witness read paragraph 12 of his statement and said the use of word “interior; is an error. The witness maintained that James Kay’s residence is adjacent to Steven Palam’s residence and that is in a confined yard.
Re-examination of S/C Samuel Koy
133. In re-examination, according to the sketch map, Steven Palam’s residence is marked with his name and letter “R” for residence and the scene is marked as ”SP” for sexual penetration.
134. When asked where James Kay’s residence was, he said it was between the scene of crime marked as ‘SP’, in the residence of Steven Palam’s marked as “R”. He said Steven Palam’s block is 50 x 60 metres in size.
Defence Evidence
135. Defence called the accused and one other David Yap. They gave sworn oral testimony. A summary of their evidence stated.
Examination in chief of the accused Nickson Palam
136. The accused said he goes by two names, Nickson Palam and Noel Ruk. He graduated with a Bachelor’s Degree in Accounting in 2017. Cedrick and David drinking with him and others. He denied all the allegations of abduction and sexual penetration.
137. The accused said there us a motive for lying and that is regarding land issues. The land issues are that at Hagen Kona where Steven Palam’s residence is now the child complainant’s family went and dug out all the posts that Steven Palam erected. This happened in 2016 and there was a fight. Since 2016 to now, he said the child complainant’s family have been ‘making dry faces’ to them, indicating that they had been holding grudges against them and there has been disharmony amongst them. He said they are still upset over the land issue.
138. The accused also said, the child complainant’s mother’s line back at home are tribal enemies with the accused’s family.
139. Accused said he started drinking around 7:00 pm at the time of the New Year’s celebrations. At about 9:00 or 10:00 pm Cedrick and David joined them. About 2:00 am, they were still drinking.
140. He stated that James’ Kay residence was not within Steven Palam’s residence but three blocks away. The area is fences and it is not possible to walk through. From Isaac Kuli’s residence to Steven Palam’s residence, the access is only through the main road and its over 100 metres. There is a short cut through the rugby field.
141. The accused said at Steven Palam’s gate, there is no light. At Isaac Kuli’s residence, there is bright light. If two people were coming out they can be seen at Isaac Kuli’s residence. If they were dragged or were struggling, they can be seen.
142. His brother Steven Palam does not drink and his gate is usually locked at night. Accused didn’t go back to the house. He agreed that gate is usually locked at 9:00 pm and all though the night.
143. The accused indicated by putting 2 x’s on the sketch map, one is showing Kundi’s house where Rodney went to buy beer and another indicating Steve Palam’s residence. The accused said if Rodney was returning from Kundi Nixon’ store he will not go past Steven Palam’s yard.
144. Witness agreed that during his police interview, and in the ROI, PW Maraga put to him that the act of sexual penetration occurred on the veranda of house and not on the grass.
145. Witness agreed that according to S/C Koy’s evidence, the gate to Steven Palam’s residence was locked, and two people cannot go through the gate.
146. The accused denied committing the act of sexual penetration on the child complainant.
Cross-examination of the Accused
147. The accused said he knows the child complainant. He denies the allegations of Abduction and sexual penetration. He agreed that there is a patapata in Steven Palam’s residence. He said there was no bush next to the patapata. He denied the allegations of abduction and sexual penetration. He also denied that Rodney went to Steven Palam’s house to look for him. He said Cedrick hit his mother Shelly and he agreed with state prosecutor that this was not put to Shelly or state witnesses at cross examination.
Re-examination of the Accused
148. The accused said the child complainant’s mother and father approached him and asked him about the allegations and he said to them that he didn’t do what they are saying he did. He said he didn’t meet the child complainant on the night. The only time he saw her was after the night and in the morning when people called or her to come out as she was still sleeping. It was at that time that Cedrick beat Shelly.
Examination in chief of David Yap
149. A summary of the relevant parts of the witness’ evidence is restated. He was drinking with Nickson Palam and others. When asked if Nickson was there between 12mid night – 3:00 am, he said he was drunk and thought that because the car was there, he would have to say Nickson was also there.
Cross-examination of David Yap
150. When asked by the prosecutor if he was sure that Nickson was there all the time, the witness said in pidgin “mi no holim hand blo em” translated to mean “I was not holding his hands”.
Re-examination of David Yap
151. The witness was asked if he saw with his eyes if Nickson was there between 12 mid-night – 3:00 am. He said the car was there, the car doors were open, music was on and people were dancing. He was drunk and not able to see, but there were plenty men around. Nickson and his friend were close to him.
152. That was the end of the defence case.
Defence submissions on verdict
153. Defence made the following submissions:
already conceded that the state’s evidence is so tainted and dubious.
despite him being present at the said location where the child complainant was and her family were, defence deny him having any engagement with the child complainant. In cross examination he maintained his story by denying the allegations.
case beyond all reasonable doubt.
is still doubt in the state’s evidence and the state had conceded to that.
2018, when she first attended to the Police station with her mother she told the Police that the accused took her to his brother’s house and sexually penetrated her on the veranda of the house. In Q&A 34 of the ROI, the question put to the accused supports the defence contention that the story given by the child complainant to the Police was exactly what is contained there. The question the Police asked the accused was “Did you take the victim to the veranda of your house and sexually penetrated her there? Defence submitted that this was the story given to the Police by the child at that time.
complainant gave another story. She did not say that she was sexually penetrated on the veranda, but that she was sexually penetrated on a patapata or platform inside Steven Palam’s residence. Defence relied on the child’s prior inconsistent statement, pidgin version, Defence Exhibit “A”.
the forensic science officer S/C Koy who went to take the photographs at the crime scene. He accompanied the child complainant and the child complainant told her story to him as they were going through and taking the photographs of the different locations in which, she indicated to him on how she was taken from her home to where the alleged act of sexual penetration occurred. In her story she said she was sexually penetrated inside the premisses of James Kay, behind a store on a patapata and not inside Steven Palam’s residence. James Kay’s residence is adjacent to the child complainant’s father’s residence. Steven Palam’s residence is separated by three other blocks of land which are demarcated and fully fences with wire fencing. There is no way someone could walk through those fences to go through Steven Palam’s residence. The only route to be taken was through the main road. That was New Year night. The victim indicated that she was sexually penetrated at the back of James Kay’s house.
before the HEO conducted the medical examination. She said she was taken down the road and along the way the accused took her to the roadside where there were tall grasses and he sexually penetrated her there. She did not say it was inside Steven Palam’s residence; at the veranda or patapata of his house or she did not say it was inside James Kay’s residence. She said it was along the way.
154. Defence further submitted that when she was telling her story S/C Koy, she said the gate to Steven Palam’s residence was locked and both the accused and her squeezed themselves through that space which is about 20 cm in opening and went into the residence of Steven Palam. Defence submitted that it was impossible even for the accused enter through that space. It is unbelievable for the child complainant to say they both squeezed into the gate. The evidence of the opening of the gate and measurement of that space is contained in the photographs.
155. Defence summarised their submissions by saying that there are four different versions of how the incident transpired and the court must decide which one to believe? That is the main issue. Defence urged the court to consider that based on the different versions, the state had conceded that they were unable to reconcile the prosecution evidence to point to the guilt of the accused.
156. Defence submitted that the court must find that the state witnesses who came to court to give evidence were not telling the truth. Rodney Pet denied what was in his statement. He confirmed that he signed the statement but all he said in the statement was totally inconsistent with what he told the court. The mother of the child complainant Shelly Isaac was lying when she said she wasn’t drinking when Rodney Pet said his statement that she was.
157. Defence submitted that at the close of the state’s case, the defence made a no case to answer submission. Although defence conceded that there were some evidence according to the first leg of Paul Kundi Rape, the evidence was insufficient and the defence made submissions also on the second leg of Paul Kundi Rape. The state conceded to the defence submissions which shows that the state had failed to discharge the onus of proving this case beyond reasonable doubt.
158. The accused has maintained his story from the time he responded to the Police in the conduct of the police interview now contained in the ROI and his story given to court during his sworn oral testimony. Defence submit that they have complied with the rule in Browne v Dunn (1893) 6 R. 67 (HL) by putting the accused’s story to the state witnesses. His evidence is that he was there but he did not at anytime sexually penetrate the child complainant. He said he did not abduct her or even engage or talk with her at any time during the night. The witness David Yap was at all material times with the accused. The child complainant’s own brother Cedrick Isaac was with the accused. Cedrick is a key witness and defence submit that he could have been called to give evidence against for the state against the accused. Defence submits that for unknow reasons he was not called.
159. Based on the evidence as it stands and given the very serious inconsistencies in the statements of the child complainant, and state witnesses, Defence submitted that there is still doubt in the state’s case.
160. In further submissions, Mr Koke urged the court to take note of a case he dealt with involving a trial on a charge of PSA. The Medical Officer was Ms Olivia Ephraim, the same HEO as in the present case. In that case, Ms Olivia Ephraim’s Medical Report said there was findings consistent with sexual penetration. The child gave evidence and did not say there was sexual penetration which totally contradicted what the medical report said. The court should not place weight on the present medical report by the same HEO, Ms Olivia Ephraim.
Motive
161. On motive, the defence submitted that state witnesses have a motive for lying and the defence has maintained that in their case. There is an ongoing conflict between both the child complainant and the accused’s families. There is also an ongoing tribal conflict back at home where there is still tension between both families. Families have grudges against each other. Defence submitted that this is one of the reasons why they fabricated this case to get back at the accused’s family.
162. Defence submitted that state had not disproved these motives. State witnesses have made up the stories against the accused because of these motives. David Yap, who is a blood relative of the child complainant was with Nickson Palam and it goes to show that it is illogical for that to happen as they would not have been in good terms. David Yap still came to court to support the accused’s case. Defence submits that based on the foregoing, the court should not believe the evidence of the majority of the state witnesses whose evidence had been totally discredited.
163. To be credible state witness evidence must go to show that there is one story only and that should be that the accused penetrated the child complainant at one location only and no at so many different locations. It is a question of who is telling the truth. Defence submits that apart from S/C Koy, who told the truth about what is in his statement, the total sum of the rest of the state witness evidence still creates doubt because of the different versions or prior inconsistent statements about the same incident. The child witness cannot be believed.
State Submissions on Verdict
164. State prosecutor submitted that on the motive of land issues, the child complainant said she was never aware of any such land issues. She would not have been aware of it or there was no such existing conflict. The child complainant did not have a reason to make up this allegation against the accused.
165. Defence failed to comply with the rule in Browne v Dunn (supra), when the accused came to court, and spoke about Cedrick assaulting their mother. That was not put to state witnesses especially to the child’s mother Shelly that her son Cedrick assaulted her. She never had the opportunity to respond.
166. State submits that the issue at hand is whether the accused is the one who committed the offences of sexual penetration and abduction of a child. The evidence of these come from the child complainant and independent evidence is from the medical report. There is evidence also of recent complaint to Rodney Pet and the child’s mother Shelly. There is a birth certificate on file, showing the relevant age to be under 16. The only issue is one of identification. There is no issue with the other elements of the offence. For the second count, that is on the charge of Abduction of unmarried girls under the age of 16, the state submits there is evidence that the child was taken without the consent of Ai Kom, person having charge of her.
167. On the issue of involvement and identification, State say it is the accused who committed the alleged acts. The accused says it is not him. Defence does not take issues with the other elements of both counts.
168. State tendered by consent the ROI, English and Pidgin versions, the affidavit and medical report and the police photographer S/C Koy’s report which included a sketch map and a total of 17 photographs of the crime scene. Evidence also comprises of prior inconsistent statements of the child complainant and Rodney Pet.
169. State submitted that with regard to the child complainant’s evidence that she gave to court, disregarding the prior inconsistencies, she appears to be a credible witness. She clearly stated what happened to her as she was going to the shop. It was not an attempt to identify a stranger or one where the child was taking a quick glance of such a person. It was identification through recognition of someone she had known. She knew the accused for over a year. The accused himself said he had known the child for as long as he had been there. It is not a case of mistaken identity.
170. The child complainant saw the accused abduct her, threaten her, put his hand over her mouth to shut her up, threatened her and took her to a block about 100 metres down the road, which is Steven Palam’s residence. There were some inconsistent statements on the location, i.e., whether it was in James Kay or Steven Palam’s residence but the sketch map clearly shows and indicated where the incident took place. People may be mistaken on whose property it is but where it is indicated on the sketch map is where the incident occurred and that is the most important evidence. State submitted that the child complainant showed the police investigator the area within Steven Palam’s block where she was sexually penetrated and though she had some inconsistent statement, her evidence is credible in the whole.
171. The child complainant also gave a reason for her contradicting statement in the medical report. She did not say it was a completely different place. State submitted that she did not fully describe the area where she was sexually penetrated. The place at the patapata, she agreed had some long grass and bush around that area. The court can take that as an explanation to the area she described in the medical report that it is the same area with long grass and bush.
172. State submitted that the child’s mother’s evidence on whether she was drinking or not was not relevant and does not go to the crux of the issue of sexual penetration. State submitted that maybe she didn’t want to admit that that was drinking on the night when her daughter was sexually penetrated. These questions were not ascertained from the evidence. However, the only evidence she gave that was relevant is her evidence of the child’s recent complaint to her.
173. The evidence of recent complaint is an exception to the hearsay rule. It does not go to the truth of the matter but it was what was said to her after showing that such words were said. The mother’s recount of what her daughter said to her, during those early morning hours corroborates (even though corroboration is not required) in this division) the child’s story and it does strengthen the state’s case. The recent complaint evidence to the mother was what was said to her after Rodney Pet had brought the child to the house.
174. With regards to Rodney Pet’s evidence, his evidence created a lot of problems for the state’s case. Rodney Pet was basically drunk like David Yap who was also dunk. Rodney Pet said in I statement that he was at the location drinking with the mother of the child complainant and later changed his story.
175. He stated that he had left to get beer that when he located the child crying and coming out of Steven Palam’s residence and she had related to him what had happened to her. That was his evidence. On his inconsistencies he did say it was some beers back but state submit that for most part he was drunk. Some things he may not have recalled properly. Witness was drunk and may not have been recalling things correctly as he had done in his police statement.
176. For the defence case, State submitted that the accused denied in cross-examination all the allegations when put to him. He did talk about the assault by Cedrick but he agreed that this was never put to state witness Shelly and the rule in Browne v Dunn (supra) was breached. That was a recent fabrication of evidence. The accused denied the allegations. He appeared to convince himself that he did not commit the crime.
Prosecutions submissions on credibility of David Yap
177. State submitted that the defence witness David Yap had drunk a lot of beer starting at 3:00 pm that day. By 10:00 pm he had drunk 17 bottles. When asked if he had drunk a carton, he said he was not sure. State submitted that at the rate he was going and i.e., as an individual he would have drunk at least a carton from 3:00 pm to after 12 mid night.
178. The crucial evidence this witness stated in court, was that he was with the accused from 10:00 pm onwards. He said the accused was there listening to music. But when state asked further question, he said he was not holding the accused’s hand the whole night. State submits that it shows that he was not confident that he was with the accused the whole time. Defence case is he was there. State does not deny that he was there. But submits that there was a window period between 2:00 - 3:00 am when the accused went away and did what he did. As far as witnesses were concerned, he was somewhere around where the two vehicles were parked. They did not expressly state that he was there but they were assuming that he was around at that time.
179. The state submits that there was a window of opportunity for the accused to do what he did. The child complainant says it was not a long period of time that the act of sexual penetration occurred. The distance of where the child was taken to was about 70 - 100 metres down the road and it was not far away. They cannot be away for more than half an hour. Cedrick and others would not have been able to realise that the accused was away. All they would have assumed is that he was there the whole time.
180. State submitted that the court should find the accused guilty as charged on of both counts.
Defence Reply
181. The evidence of the child complainant does not clearly establish how the incident transpired. Firstly, her evidence, is that she was with her aunt Ai Kom and Uncle Charlie. There were other people in the premisses of her parents. She knew them but she said she wasn’t with them. She only named two persons Ai Kom and Charlie. She was even confused about her own blood grandmother who was there. Her other aunt was there bit she said she didn’t know those people who were there. The test of logic and common sense be applied to the evidence.
182. She said she was on her way to the store to purchase cigarettes and before reaching the store she was abducted by the accused at the back of the store. The back of the store is within her parent’s premisses. People were there drinking beer. They would have seen her being abducted. The area is a levelled place and there were no bushes growing there. The light was on and it was bright enough for anyone to have seen the accused abducting the child complainant if what she is saying is true.
183. If the accused and child were existing the premisses of the victim’s parents, in front of James Kay’s store, there is evidence that people were gambling, drinking beer, and the lighting was very clear, people could from a distance clearly see them. If the accused was dragging the child, covering her mouth and dragging her, from the entrance of child complainant’s parents gate all the way for almost 70 - 80 metres to where Steven Palam’s house was located, people would have seen that. It was during the new year’s night celebrations and according to logic and common sense there were a lot of people around. They were drinking, it was a public place and people would have seen that something was not right. They would have raised alarm about what was going on.
184. Mr Koke submitted that according to logic and common sense, it was a public place and acts that are sexual in nature occur in isolated areas and in secret. Defence submits that for the above arguments, what the child complainant says should not be believed.
185. Mr Koke submitted further by repeating his earlier submission that he has dealt with a similar case in February 2021 before another court. The case involved a charge of Persistent Sexual Abuse (PSA) of a child (s 229D). At rial, the child said there was no persistent sexual abuse and the accused was acquitted despite the medical report saying there was sexual penetration. The Medical report in that case was produced by same officer as in the present case HEO Ms Olivia Ephraim. In that case, she was asked by defence to come to court to be cross examined but she failed to appear. Mr Koke submitted that he has understood and appreciated the kind of medical officer Olivia Ephraim was in that case. He submitted that for that reason, her medical report now in the present case should not be given weight.
186. Defence submitted that in summary all state evidence shows inconsistencies and contradictions. Rodney Tep was not looking for the child complainant. The child complainant never mentioned that Rodney was in their premisses. In court he said he was there. If Rodney went there to look for beer, how could he find victim coming out of gate at Stevens Palam’s house? Defence submits that both Rodney and Shelly lied in court. Their evidence cannot be relied upon, and they are dishonest. The child complainant mentioned four different stories and not specific to one location. Her story should not be believed.
187. The accused denied the act of sexual penetration and abduction. In the ROI, the accused was not asked if sexual penetration occurred in Steven Palam’s residence at the patapata but police asked about the act of sexual penetration on the veranda. They prosecutor did not put state’s case to the accused according to what the police said in the ROI.
188. State explains that the medical report where the child complainant said there were long grasses, she explained that but there are serious inconsistencies in her own evidence. She can give evidence with clarity and accurately but being discredited can mean she can be found to be dishonest.
189. In relation to David Yap, defence submits that state said he was drunk and unable to give clear narrative of what occurred between 12mid-night to 3:00 am. David Yap indicated that he was not drinking mix beer and even if he drank SP larger, he would still be normal and his understanding would still be clear. Defence submitted that he was not totally drunk that he couldn’t remember anything.
190. Defence submitted that when David Yap said he was not holding the accused‘s hand, how could they be holding hands. They were there together. He didn’t say Nickson was not here.
191. State had failed to discharge their duty and the accused be acquitted of both counts.
Application
192. The state bears the onus to prove the guilt of an accused beyond a reasonable doubt. Where there are two opposing versions, as in this case, the court must consider the credibility and reliability of the witnesses evidence.
193. Where there are submissions on prior inconsistent statements of state witnesses, the issue is one of credibility of the state witnesses’ evidence and how much weight the court should place on them.
194. Evidence that is reliable should be weighed against the evidence that is or may be unreliable and be measured against the probabilities or whole of the evidence in the case. In the final analysis the court must determine whether the state has satisfied the requirement of proof beyond a reasonable doubt.
195. The crux of this case centres around the issue of credibility. Whose evidence is to be believed or whose evidence is more convincing.
In this case, is it the evidence of the child complainant that this Court should believe or the evidence of the accused?
196. In order to appreciate and determine who this Court should believe, the Court must assess all the evidence before it in a correct
and legally acceptable manner. In State-v-Angosiwen (No. 1) [2004] PNGLR 1, Kandakasi, J stated;
“In so far as is relevant here, one of the applicable tests or principles is consistencies in a witness own evidence and other
evidence called by a party”.
197. In State-v-Peter Malihombie [2003] PGNC 124; N236, the court found amongst others that there were a number of inconsistencies in the prosecution’s evidence. Court found the inconsistencies serious enough to cast a serious doubt on the case against the accused. Many other cases have considered and applied this test. It emerges clearly from these authorities that where serious inconsistencies exist, there is the possibility of false testimony and therefore unsafe to act on.
198. Another relevant and applicable test is one that runs closely with the consistencies test. This test focuses on testing the evidence given in Court against logic and common sense. As to findings of credibility, I propose to adopt what his honour Kanadakasi J, said in the State v So'on Taroh (2004) N2675 as follows:
"Finding of credibility is in turn dependent on matters of logic and commonsense as well as the demeanour of the witness and any inconsistencies in their evidence".
199. The evidence would need to be tested against logic and commonsense to determine credibility. In that respect the Court in the State v Cosmos Kutau Kitawal (No 1) (2002) N2245 described the part that commonsense and logic played in these terms:
"Logic and commonsense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty."
200. Applying the commonsense and logic test courts have convicted offenders of various offences. In the State v Gari Bonu Garitau & Rossana Bonu [1996] PNGLR 48 the National Court found the accused guilty of murder even when there was no direct evidence showing that the accused had killed the deceased. On appeal the Supreme Court affirmed the National Court approach on the application of the commonsense and logic test and dismissed the appeal. See also the State v Tom Morris [1981] P.N.G.L.R 493; Paul Pawa v the State [1981] PGSC 16 [1981] PNGLR 498 (27 November 1981); and The State v Immanuel Bais (2003) N2416 which dealt with issues of common sense and logic.
201. A further relevant and applicable test for our purposes is one that requires a close examination of the witnesses’ performance
in the witness box, usually known as the demeanour of the witnesses. The Courts have decided many cases in the past on an application of this principle or test. In the case
of State-v-Patrick (2004) PGNC 147; N2611 Sevau, J (as he then was) stated that;
“In order to address these issues, the credibility of the witnesses and their demeanour are relevant. In this case, it is the victim’s words against the Accused’s words so the Court is entitled to believe one witness and disbelieve the other...”
Prior inconsistent statement
202. It must be kept in mind the fact that a witness who gives inconsistent accounts is not necessarily lying. While dishonest witnesses are more likely to introduce inconsistencies in their stories, truthful witnesses may make mistakes about details.
203. On inconsistent statements, only parts of which defence rely on is admissible. Court must weigh those against the whole of the
evidence when deciding on the credibility of the witness whose statement is tendered as a prior inconsistent statement.
State witnesses’ evidence and address on Submissions
204. Defence submitted that the child complainant gave four different versions on how the incident transpired, therefore, she is not a truthful witness and this court should not believe her.
Contents of the ROI on act of sexual penetration on the ‘veranda’
205. The evidence of what the child told the police upon laying of a criminal complaint and how it was taken down by the person receiving
the complaint is not before the court. The appropriate person to have given such a statement or evidence would be the arresting officer
PW Martha Maraga who would have conducted the investigations and obtained the child’s statement.
206. In any criminal investigations, it is common knowledge that the arresting officer would usually make a detailed statement of how they did their investigations, how they obtained witnesses statements and for child witnesses, a good investigation file would contain a detailed statement form the arresting officer on how they obtained the child’s statement. There is nothing in evidence before the court on that. The court is left to guess as to what exactly was told and to whom the story was first told to if it were not the arresting officer PW M. Maraga.
207. The arresting officer would have made her own statement as the case investigating officer on the conduct of her investigations and how she obtained the statements. This evidence on the overall investigations which is usually contained in a statement by the arresting officer, is not in evidence before the court.
208. The whole statement of the child witness obtained and reduced into writing by the arresting officer PW M Maraga, the pidgin version of which is tendered as Defence prior inconsistent statement of the child complainant and marked as Defence Exhibit “A”. The court can accept that the statement was obtained from the arresting officer PW M. Maraga as it is in evidence as a prior inconsistent statement and not in dispute. Here, the statement of the child complainant, dated 10/1/18, at paragraph 7 says:
“Nickson kisim mi go sait lo haus blo em, long wanpla patapata sawe stap”
Translated to mean: “Nickson took me into his house, where a patapata (form made for sitting) is”.
209. From her statement, I accept that the statement of the child refers to sexual penetration taking place on a patapata and not a veranda. I accept that that is consistent with what the child said in her oral evidence. She maintained that same story when she complained to her uncle Rodney and later to her mother Shelly.
210. There may be evidence in the ROI of the arresting officer putting to the accused in a police interview, that the act of sexual penetration occurred on the veranda, and not on the patapata, but the only person who can best explain that is the arresting officer herself. She prepared the questions and obtained the answers during the conduct of the Police interview. She did a record of that which is typically known as the ROI, which is prepared and compiled in the court depositions. As such she will be the appropriate witness to explain why she used the words ‘veranda’ and not ‘patapata’ in the ROI. To say from the questions and answers in the ROI, that the child used that word veranda and not patapata as in her statement would be unfair on the child. Further, it would be unfair, as according to questions put in cross examination to the child complainant, she was not asked specifically about telling the PW M. Maraga that the act of sexual penetration occurred on the veranda, as contained in the ROI.
211. The question and answer 34 of the ROI could have been properly explained by the arresting officer. She was not called or asked to be cross-examined by the defence. It would not be fair to find that the child is not a truthful witness because the defence relies on the content of the ROI without first calling the arresting officer to explain it.
Child complainant’s story in her police statement that she was ‘carried away’
212. The story of the child complainant on how she was taken away is contained in her police statement. She was shown her statement,
(the pidgin version), dated 10/1/2018, and when asked that she told the police that “he (accused) carried her” to his brother’s house, she said yes. When
asked that she just told the court now that he did not carry her but just pushed her, she said in pidgin “em pulim mi na karim mi go”, translated to mean “he pulled me and took me away”
213. The child complainant’s oral response in court, in pidgin “em karim mi go” would not necessarily mean she was carried away. This is because to put to the witness that ‘karim mi go’ meant ‘carried me away’ would not be an accurate translation of the pidgin version, as it is widely understood by pidgin speakers, that the words “karim go” does not necessarily mean ‘carried away” but can mean to ‘take or lead away’. An English translation of the child’s statement was not tendered. The child complainant had also explained in examination in chief and again in cross-examination that she was forced, by being pulled or pushed. I accept that she didn’t mean being carried away off her feet. Although she said the accused lifted one of her legs, she also said in her evidence that she was walking or was on her feet. For this reasoning, I do not accept that the child meant to say she was lifted off her feet and was carried away. I accept that her story in court is consistent and she did not change her story or was untruthful.
Child complainant’s evidence on the gate being locked
214. The child complainant was also cross-examined on whether the gate was locked or not and she maintained that it was open. The
police photographer S/C Koy said the child told him that the gate was locked with the chain as shown in the photograph and there
was a space of at least 20cm that the accused and her slipped through. The accused also said the gate is usually locked at night.
215. In her police statement, she said: “em pusim mi go insait lo gate” translated to mean; “he pushed me into the gate”. This indicates that she was directed into or through an opening. I accept that this was the evidence, that the gate was locked but there was an opening in order for someone or something to be pushed through or to go through.
216. I accept that the gate was locked but here was an opening as this was what the child would have meant in her further statement
when she said at paragraph 6, line 2, “na pusim mi go insait lo gate na salim mi go insait” translated to mean: “...and pushed me into the gate and sent me in”.
217. That is consistent with the accused’s own evidence that the gate was locked, and S/C Koy’s evidence that the child
told him that the gate was locked. I do not find that the child is not telling the truth now in her oral testimony. I accept that
when she said the gate was open, it was because according to her own understanding, a child who had been so inadequately educated
for her age, she meant there was an opening as indicated by her to S/C Koy.
218. I accept that the opening at the gate was as described by S/C Koy, and that 20 cm is enough spacing for someone of average weight and height to squeeze in one at a time. I accept also that the gate was locked with the chain and had an opening as explained by S/C Koy based on the child’s story to him. For this reason, I do not find that the child witness was untruthful on this aspect of her evidence.
Contents of the Medical Report on where the act of sexual penetration occurred
219. The HEO, Ms O. Ephraim is the author of the Medical Report and she should have been called to explain what she meant in the way
she obtained and recorded the child complainant’s history. It was put to the child complainant and she in all fairness said
she does not know, referring to the contents of the Medical Report because she is not the author of the contents of it.
220. She also maintained that she was raped beside the patapata inside the residence of Steven Palam and not on the road. The witness was referred to the medical report prepared by HEO Ms Ephraim, which was tendered into court as evidence, marked as State Exhibit “B2”. At paragraph three (3) of the Medical Report, the HEO Ms Ephraim stated that during consultation the child complainant told her the following:
“Em long New Year taim................Mi wokabaut go lo rot na man ya em pulim mi go insait liklik long grass na em mekim pasin nogud lo me ...”
Translated to mean: “It was New Year...I walked on the road and this man pulled me into a small bush and he raped me”.
221. When put to her that this was exactly what she told the HEO, she said, “I don’t know’. There was no further cross-examination on this.
222. In re-examination, when asked about what she said in the Medical Report, that she was taken into a “small grass and bush and raped” she again in all fairness said it’s been three years since and she cannot really recall.
223. Similar to the reasoning above on the contents of the ROI, the HEO is the author of that medical report. The child complainant
cannot speak on the contents of that. In all fairness to her she rightfully said she didn’t know and the court does not expect
that she will speak for the HEO, Ms O. Ephraim on what the HEO wrote in that report. The child witness maintained in re-examination
by describing the patapata area as an area having bushes around it and that she was raped on the patapata inside the premisses of Steven Palam and not on the road.
When asked what was on the side of the patapata she stated that there were bushes around the patapata.
224. I accept her evidence in court as her explanation of the area where the act of sexual penetration had occurred to her. The HEO was not called to explain the contents of the medical report. I accept the child complainant’s clarification that the incident occurred on the patapata where there is bush and grass around it and this was inside Steven Palam’s residence. I therefore do not find that she was untruthful in that regard.
225. Defence submitted that the Court should not place much weight on the Medical Report because the HEO Ms O. Ephraim was not a reliable witness in another case he had defended before another court. Whilst that may be the position in that case, that is not the evidence in this present trial. Ms Ephraim was not called to explain her report and she was not cross-examined or discredited. The medical report is tendered into evidence by consent as State Exhibit “B2”. The court can place weight on it on the HEO’s findings, when considering the whole of the evidence. I note however, that under s 229H and 352A corroboration is no longer required for offences under Division 2A and Division 7 of the CCA.
David Yap and Cedrick Isaac not called as State witnesses
226. Defence submitted that because the State did not call Cedrick Isaac and David Yap as state witnesses, the state’s case is suspicious and because of that state witness were not telling the truth and should not be believed. The defence was at liberty to call Cedrick Isaac or anyone else for their case even if state did not call them. If Cedrick Isaac was a state witness, defence did not give notice to the state to provide him for cross-examination. The court rejects the defence submissions that state witnesses were not telling the truth because State did not call these two persons as state witnesses.
State’s concessions at the no -case submissions
227. The court had ruled that there was a case to answer after the defence made a no-case to answer submission at the close of the prosecution case. The court’s decision in refusing the no-case application is an independent one made by the court after hearing of submissions and considerations of the evidence at the close of the state’s case. Reasons for that ruling were given in court. Unless there is an appeal, this ruling remains intact. The submissions of the state at that time that they concede that their witness’s evidence cannot be reconciled is disregarded for current purposes on a consideration on verdict. For the above reasoning, I reject the defence submission that because the state had conceded that it cannot reconcile it’s witnesses evidence during no case to answer submission, that the state witnesses’ evidence are doubtful and cannot be relied on by the court in its present task of considering a verdict.
Motive
228. The child complainant and her mother’s evidence are that there never was any conflict, before and now existing between both families. The mother did say they occupied land at ATS but she disagreed with the defence case that there was or is any existing conflict on any land in the manner relied on by the defence. The defence also failed to observe the rule in Browne v Dunn (supra) when they did not put to state witnesses that the child complainant’s family had dug out the posts belonging to accused’s family on the land at ATS or that there were existing land issues at home between both families.
229. If there were ongoing conflict between both families, common sense and logic would mean that the families will not be best of friends. There is evidence from the accused himself however, that Cedrick Isaac and David Yap who are the child complainant’s blood brother, and relative are best friends and school mates with him. They were drinking with the accused. The accused specifically said he invited David Yap to drink with him. The accused also said he regarded the child complainant as his little sister. How could the child complainant and her family whom the accused regard as family and best friends and where they have a good relationship with suddenly make up a serious allegation out of the blue against him? Common sense and logic dictate that there were no such conflicts before or existing between both lines.
230. For the above reasons, I do not find that there was or are any existing conflicts, disharmony or hard feelings between both families. I reject the defence submission that the state witnesses have a motive for lying.
Shelly Isaac and Rodney Pet
231. The relevance of witnesses Shelly Isaac and Rodney Pet go to show evidence of recent complaint, although in law, corroboration is no longer required for offences under Division 2A and Division 7 of the CCA and the court can convict solely on a complainant’s story.
232. I accept the prosecutor Mr Kaipu’s submission on the credibility of both witnesses in the way he argued it. Shelly Isaac would not have wanted to show that she was a bad mother for having been drunk when something dreadful happened to her daughter. But that does not make the relevant part of her evidence untrue, which is that the child complainant made her recent complaint to her. As a mother, I accept that Shelly reacted quite naturally when she first heard the news and got her brothers and tried to confront the accused but he wasn’t at his home. It was also expected of her as a mother, to take her child to the police and then to the hospital and now to court. Her support towards her child in this regard is consistent with what a normal mother would do. I do not find that she has a motive for lying that the child complainant related the incident to her.
233. For Rodney Pet, I accept that his denial of his sister’s part take in alcohol would be for the same reasons as his sister Shelly. However, again, being the uncle of the child complainant who was there at the relevant time, I accept his evidence of recent complaint. I reject the defence case that there was a motive for lying especially when he is related to the child complainant through her mother. The child complainant and her mother Shelly have denied that there was a motive for lying. I accept his evidence that the child related her story to him as evidence of recent complaint.
S/C Samuel Koy’s evidence
234. The witness S/C Koy was truthful as conceded by the defence. I accept state’s submission that the sketch map which he is the author of gave a simple explanation on the route the child took. It showed where people and places were and it also showed where events occurred. In summary he indicated at follows:
235. I accept that he also explained that James Kay’s house in within Steven Palam’s residence, adjacent to it and in a confined area.
The accused’s evidence
236. The accused appeared as a convincing witness. His evidence is that he did not take the child away, nor did he sexually penetrate her. He did not have any engagement with her or even talk to her on the night. In his effort, he said in a straightforward manner that ‘he never put his penis into the vagina of the child complainant’. He also told his specific story of how there are on going issues on land both at ATS and at home and say due to these, the state witnesses have a motive for lying.
237. I reject that the state witnesses have a motive for lying for the same reasons as above. The accused’s specific statements on both land issues were not put in cross examination to the state witnesses. The rule in Browne v Dunn (supra) was breached in this regard.
238. Further, it is common knowledge that tribal enemies in PNG especially in the highlands are not best of friends or will not readily help each other out especially in a serious allegation like this. But there is evidence from the accused drinking with Cedrick Isaac and David Yap and regarding them and the child complainant as friends or family. I reject the accused’s evidence that that there was or is any existing conflict or disharmony between both families. I do not find that the state witnesses were bent on a motive to come and make up a serious allegation against the accused. The state witnesses have sufficiently explained that.
239. I also find that in David Yap’s evidence, he said he did not hold the accused’s hands the whole time, which is not to be taken literally as Mr Koke submitted it should, but should mean in the circumstance that, he would not have had his eyes on the accused the whole time. I accept the State’s submission that there was an opportune time, when the accused had left the boys he was drinking with and David Yap would not have known. According to the child complainant, it wasn’t long for the act of sexual penetration to take place and as such, no one would have noticed anything whilst partying, drinking, listening to music and being drunk, from continuous drinking. It was not a normal night, people everywhere according to evidence were partying, drinking and celebrating the new year. If no one noticed anything, it will be because of their engagement in what they were doing because of the new year celebrations.
240. I find that the accused did have an opportunity to go away from the group. He did not leave the location to some other place as the taxi he may have come in was still parked there, its doors were open and the music was on.
241. I find that the child complainant was indeed sent away to buy cigarettes for her aunt Ai, and she had left her aunt and them and walked away towards a trade store. That was when she was abducted, between her house and at the back of the trade store as told by her and as indicated on the sketch map. She was taken away by force where she was being pulled and pushed in the manner she described along the route on the road as indicated on the sketch map, through the opening in the gate and sexually penetrated inside the residence of Steven Palam. She said the accused Nickson Palam was responsible as she knew him and identified him as a known person and not a total stranger. They know each other.
242. The sketch map properly represents the route taken by the complainant as she left her home, was abducted and taken away. The sketch map also properly described where persons were, buildings were and where events occurred. The sketch map was drawn after the child complainant narrated her story to the Crime scene investigator and photographer S/C Koy. S/C Koy was a credible expert witness.
243. I find that the sketch map showed that the abduction occurred at point “A” on the sketch map; where the child said she was at the back of the trade store and that “S-P” indicated where the act of sexual penetration occurred inside the premisses of Nickson Palam marked “R” and at a platform indicated by a rectangular diagram. The child complainant would not have known about the platform and grasses nearby if she was not taken there.
244. The child complainant described that the act of sexual penetration did occur after the accused tore her shirt and removed her clothes and when he sexually penetrated her, she had felt pain in her vagina. There is no dispute on the manner in which the act of sexual penetration occurred as pleaded on the indictment, i.e., penis to vagina penetration.
Child witness’s credibility
245. I accept that the child complainant was the only witness among those there who obviously for her age was and could not have been drunk that night. All other witnesses who were there including the accused were drunk. For this reason, I accept her recollection of what happened as accurate i.e. on identification, and how she was taken away and sexually penetrated. She spoke confidently and particularly when under cross-examination on what the defence say were her prior inconsistent statements and she maintained her evidence that the accused was lying when he denied sexually penetrating her.
246. At her level of education and given this daunting experience of having to come to court to tell people who are total strangers to her of her ordeal, it was expected and obvious that the child complainant appeared very quiet in the earlier part of her oral testimony. However, when confronted with vigorous and continuous cross-examination on what she may have told the Police, the HEO, and in court, as lies, she answered all questions consistently and in a fair way. In one specific instance, after it was repeatedly put to her that the accused did not sexually penetrate her, she responded in a loud and clear voice saying he lied. All of these to me demonstrated her consistency and her credibility as a honest and truthful witness. I therefore accept her story as a true account of what had happened to her.
247. The medical evidence supports her story in that regard which is that the finding is consistent with the act of sexual penetration. The recent complaint evidence which is an exception to the hearsay rule does also support her story.
248. For both charges, through her Birth Certificate, State Exhibit “C”, the child was 13 years old, being born on the 24th of March 2004 and she was under the age of 16 years. For the charge of abduction, at that time, she was under the care and custody of her aunt, Ai Kom when the accused took her away by force.
Conclusion
249. Based on the foregoing reasonings and findings, the State has proven its case beyond a reasonable doubt.
250. I find the accused guilty as charged and convict him on both counts accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitors: Lawyer for the Accuse
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